Jenny Chen
The Supreme Administrative Court rendered the 109-Pan-158 Decision of March 19, 2020 (hereinafter, the “Decision”), holding that if the basic facts relied on for an agency’s decision or relevant documents merely collected or consulted for reference by an internal unit for its drafting or preparatory operation do not involve the disclosure of the internal communication of opinions or thinking or debate information in the course of the decision-making process, they shall be publicly disclosed.
According to the facts underlying this Decision, the Appellee applied to the Appellant for the provision of the OO Work Plan, but the application was rejected by the Appellant (hereinafter, the “Original Disposition”). Dissatisfied, the Appellee brought an administrative action. After the administrative action was rejected by the original court in its decision and the Supreme Administrative Court reversed and remanded the original decision, the Appellant listed and tabulated the contents of the OO Work Plan by differentiating the contents that had been publicly disclosed from those which could and could not be publicly reviewed along with a list of its explanation about the reasons why it disagreed to the public disclosure and the legal basis. The Appellee changed its request from rendering an administrative disposition that approves the provision of the OO Work Plan to rendering an administrative disposition that approves the provision of the OO Work Plan with respect to the portions that would not be publicly disclosed. The original trial court held that of all the information not publicly disclosed, the “XX” portion of the reference material item met the requirement of Article 18, Paragraph 1, Subparagraph 6 of the Freedom of Government Information Law and should not be provided. As for the rest (hereinafter, the “Information at Issue”), since it did not meet the requirements of Subparagraphs 3 and 5 of the same article, its public disclosure cannot be exempt. In addition, after the original decision, which stated: “Except for ‘Item XX,’ which was not to be publicly disclosed, the portions of the decision on administrative appeal and the Original Disposition which declined the public disclosure should be set aside; and the Appellant shall render an administrative disposition that approves the provision of the portions that are set aside in the preceding paragraph, with the remaining claims of the Appellee rejected,” was rendered, the Appellant was dissatisfied with the unfavorable portions and appealed.
According to the Decision, Article 5 of the Freedom of Government Information Law provides that government information shall be actively disclosed or provided upon request of the people. Article 18, Paragraph 1, Subparagraph 3 of the same law provides that except for those which are necessary for public interest, the “drafting of documents or other preparatory operation of an internal unit before the government agency makes its decision ” shall be restricted from public disclosure or shall not be provided. Since the drafting and preparatory operation of an internal unit of a government agency are not confirmed matters before a formal decision is made, they are not appropriate for public disclosure or provision to avoid misunderstanding among the public and the resultant disputes and inconveniences. If the basic facts relied on for an agency’s decision or relevant documents merely collected or consulted for reference by an internal unit for its drafting or preparatory operation do not involve the internal communication of opinions or thinking or debate information in the course of the decision-making process, they shall still be publicly disclosed. Therefore, the information exempt under this subparagraph should be “communication of opinions or documents before a decision is made.” In addition, even for this category of documents, they should still be publicly disclosed if their public disclosure is essential to public interest. However, there is no need to weigh the legal interest of the “applicant’s information disclosure right” against the “interest of excluding public disclosure” pursuant to the proviso of this subparagraph.
It was further pointed out in this Decision that the Information at Issue suggests that it was reference for the operation of business such as the execution of examination matters, budget application and appropriation, expenditure and reimbursement, and the appointment of invigilators by an examination execution unit, is abstract and normative by nature and does not involve specific details such as examination questions, reference answers and the list of invigilators. Also, the Information at Issue was all kinds of draft tables or letters, which were not internal opinions before a decision or decision-making process was completed by the agency or government information about exchange of opinions with any other agency or do not have any nature of coordination before they were used by the officials in charge. In addition, the above information is used to provide operating guidelines or sample drafts for the officials in charge, takes the form of relevant documents collected and consulted for reference for internal drafting or other preparatory operation of an agency, and does not disclose the internal communication of opinions or thinking or debate information in the decision-making process. The facts affirmed by the original trial court do not violate evidentiary, empirical and logical rules. Therefore, the original decision was not erroneous when it concluded that the Information at Issue did not meet the first part of Article 18, Paragraph 1, Subparagraph 3 of the Freedom of Government Information Law and should not be withheld from disclosure.